论文部分内容阅读
民法中的合同自由起源于罗马法的万民法,自《法国民法典》提出,《德国民法典》将其确立为基本原则。以三大海上货物运输公约为点,英国的社会发展为线,全球经济一体化为面,来考察海上货物运输领域的合同自由,我们会发现其经历一个反复近似螺旋上升的发展历程。该历程经历了一个海上冒险中的自然存在、限制、放开到再限制,最后又回归适度放开。螺旋发展的中轴是市场模式以及市场主体地位。重新认识到自由贸易重要性的今天,对市场主体不平等的调节应该交给反垄断法或反不正当竞争法去调整,而不是海上货物运输法。
The freedom of contract in civil law originated from the Law of Peoples in Rome and was proposed by the French Civil Code. The German Civil Code establishes it as the basic principle. Taking the three major conventions on the carriage of goods by sea as the point, the social development of the United Kingdom as a line and the integration of the global economy as a face to examine the contractual freedom in the field of maritime trucking, we find that it has undergone a course of development that has been repeatedly revolving around a spiral. The journey goes through a natural existence, limitation, release to re-limit in a maritime adventure, and finally a return to moderation. The spiral axis of development is the market model and market position. Re-recognizing the importance of free trade today, the adjustment of market inequality should be given to antitrust law or anti-unfair competition law to adjust, rather than the law of carriage of goods by sea.